Law Times

Page 6 June 20, 2016 • Law Times www.lawtimesnews.com Careful, Groia There is no instance of a nation having benefited from prolonged warfare. So sayeth Sun Tzu, the author of the 5th-Century-BC classic The Art of War. Joseph Groia's well-documented fight against the Law Society of Upper Canada is an epic one that appears to be headed for a grand showdown in the Supreme Court of Canada, Law Times reports. Groia appears undeterred in his battle against the Law Society's de- cision to discipline him for unprofessional and uncivil conduct. It has been an expensive and exhausting journey, considering the behaviour in question transpired during a trial that started 16 years ago, defend- ing former Bre-X Minerals geologist John Felderhof. In the latest development, the Ontario Court of Appeal has dis- missed Groia's appeal against the LSUC. Groia's path as apparent pro- tector of courtroom freedom has become huge news. The fact Groia was elected as a bencher to the Law Society only adds fuel to the fire. But one might ask — at what cost is this matter proceeding, both financially and to the reputation of the profession as a whole? In a very thorough ruling, Justice Eleanore A. Cronk of the Ontar- io Court of Appeal, said, "The requirement of professionalism for law- yers, both inside and outside a courtroom, including zealous advocacy accompanied by courtesy, civility and good faith dealings, secures the nobility of the profession in which lawyers in this province are privi- leged to practise. The Appeal Panel concluded that this requirement was breached in this case. This conclusion, in my opinion, was both Online dispute resolution coming to Ontario I f there's one thing the average Joe and Josie demand, it's their day in court. Hiring a lawyer and paying? Not so much. But that day in court: sacro- sanct. Last year, the Ontario Ministry of the Attorney General triggered a firestorm when it asked for comments around its consideration of an Administrative Mon- etary Penalty system for provincial stat- ute infractions and municipal bylaws that would be based on an online process. The need is palpable. Some 1.65 mil- lion charges under the Provincial Of- fences Act were laid in 2014, 85 per cent of which were Highway Traffic Act viola- tions or involved the Compulsory Auto- mobile Insurance Act. While the criminal courts process some 500,000 to 600,000 charges a year, POA matters are a bigger logistical prob- lem where the stakes are low yet take up 17 per cent of the docket at the Ontario Court of Justice. Even then, only three per cent of tickets actually required a full trial. An online system in which the user logs on, files his or her defence online, and has it processed by an impartial adjudica- tor was proposed. It landed with a thud. Part of the problem may be that it was seen as faceless and untested. Many saw it as a black box into which you sent your prayers and hoped your diligent articu- lation might be rewarded if the fine was waived with a finding of not guilty or at least reduced by the value of your story. In any event, it has with- ered on the vine and died. The Ministry of the Attor- ney General told Law Times: "We received valuable feed- back in response to our pub- lic consultation paper last year. We heard people want more efficient and accessible ways to resolve their traffic tickets and they value the right to defend and dispute a charge and present evidence. We have decided not to proceed with an AMP model. Instead, we will focus on how we can improve the existing, court-based system for resolving traffic tickets and other similar POA charges." So, is the concept of an online forum to resolve disputes really dead in On- tario? Nope. It's just switching to another forum. Online dispute resolution will likely be part of recent changes to the Condominium Act. It would follow the soon-to-launch Civil Resolution Tribu- nal in British Columbia that will start accepting only strata (condo) disputes at inception, escalating to small claims matters by early next year. "We don't know how many strata cases we will get," says Shannon Salt- er, chairwoman of the CRT. "Right now, it costs about $25,000 to $35,000 in lawyers' fees to go to court so a lot of cases just don't progress. And these conf licts tear at the fab- ric of communities because that's what condominiums are, communities." The Ministry of Govern- ment and Consumer Servic- es' official line is any resolu- tion process set up under the Protecting Condominium Owners Act, 2015 will be the purview of the Condominium Author- ity Tribunal, which is created under the same act. The bad news? While the act has Roy- al Assent, it has not actually been pro- claimed by the lieutenant governor. That will be contingent on a few things, such as getting regulations in place, setting up the tribunal and the other shoe here, the Condominium Management Services Act, which also passed in December 2015. The Ministry hopes to get this done by 2017. Meanwhile, it is studying online dispute resolution. Clearly, the advantages of ODR are cost, efficiency, and allowing groups of condo owners to make joint rep- resentations in a form of mini-class action. Nothing has been decided yet, but they are watching B.C.'s launch carefully and having conversations with Karim Be- nyekhlef, the director of Quebec's Cyber- justice Lab, which has extensive experi- ence setting up ODR programs in Europe. ODR is in its infancy in Canada and the B.C. CRT is the first of its kind in the world to launch. Get it right and it could be a portal to a more efficient, cost-effec- tive, and faster justice process. Yet, given the way Ontario has managed eHealth, for example, or other digital innovations, there's little hope it could get it right the first time out of the gate, so it was no surprise its first foray was summarily re- jected. We've yet to fully effect digital fil- ings, online document management, and pleadings in Ontario courts. Still, the baby steps of a Condominium Tribunal should be welcomed. If it works, it can build on the experience to look at other judicial sectors, such as Family Law, or Estate matters, and even eventually, Small Claims. The experience in B.C. will also reassure consumers — and, ini- tially, condo owners — that their right to be heard is not being shelved and that the process works. LT uIan Harvey has been a journalist for more than 35 years writing about a diverse range of issues including legal and political affairs. His e-mail ad- dress is ianharvey@rogers.com. COMMENT ©2016 Thomson Reuters Canada Ltd. All rights reserved. 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One must admire his dogged persistence. It's a high-stakes endeavour. The LSUC would do well to mind the power of the narrative, which, in this case, appears to have a scrappy underdog pitted against giants, over the greater good. However, Groia would do well to mind the words of Justice Cronk on professional- ism and Sun Tzu's warning on prolonged battle. War, at any cost? LT

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